Citation Nr: 21067756 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 06-29 311 DATE: November 5, 2021 ORDER Entitlement to a compensable evaluation for left hip bursitis with limited abduction, adduction, internal rotation, and external rotation is denied. Entitlement to an evaluation in excess of 10 percent for left hip bursitis with limited flexion is denied. For the entire period on appeal, entitlement to a 10 percent, but no higher, evaluation for left hip bursitis with limited extension is granted. Prior to November 13, 2012, entitlement to an evaluation of 20 percent, but no higher, for low back disability is granted. From November 13, 2012 to October 13, 2016, entitlement to an evaluation in excess of 20 percent for low back disability is denied. From October 13, 2016, entitlement to an evaluation in excess of 40 percent for low back disability is denied. FINDINGS OF FACT 1. During the period on appeal, the Veteran's left hip disability did not manifest with limitation of flexion to 30 degrees or less. 2. During the entire period on appeal, the Veteran's left hip disability has demonstrated limitation of extension of 5 degrees or less. 3. During the period on appeal, the Veteran's left hip disability did not manifest with limitation of abduction of motion lost beyond 10 degrees, the inability to cross the legs, or limitation of rotation in which the Veteran cannot toe out more than 15 degrees. 4. Prior to November 13, 2012, the Veteran's low back disability has demonstrated forwarded flexion of the thoracolumbar spine to 55 degrees. 5. From November 13, 2012 to October 13, 2016, the Veteran's low back disability has not more nearly approximated forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 6. From October 13, 2016, the Veteran's low back disability has not shown unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for limitation of left hip flexion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5019, 5252. 2. For the entire period on appeal, the criteria for a 10 percent rating, but no higher, for limitation of left hip extension have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5019, 5251. 3. The criteria for a compensable rating for limitation of left hip abduction, adduction, internal rotation, and external rotation have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5019, 5253. 4. Prior to November 13, 2012, the criteria for a rating of 20 percent, but no higher, for low back disability have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237-5243. 5. From November 13, 2012 to October 13, 2016, the criteria for a rating in excess of 20 percent for low back disability have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237-5243. 6. From October 13, 2016, the criteria for a rating in excess of 40 percent for low back disability have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come on appeal before the Board of Veterans' Appeals (Board) from various rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Specifically, in an October 2008 rating decision, the RO denied the Veteran's claims for increased rating for left hip disability. In pertinent part of a June 2009 rating decision, the RO denied the claim for increased ratings for the low back disability. In July 2015, the Veteran, and his spouse, L.H., testified before the undersigned Veterans Law Judge during a Board hearing held at the RO. A transcript of the hearing has been associated with the claims folder. By way of background, the current issues were initially remanded by the Board in June 2016 for further development. Subsequently, in April 2019, the Board denied, in pertinent part, the increased rating issues related to the left hip and low back disabilities and remanded the service connection right hip issue. The Veteran appealed the increased rating issues related to the left hip and low back disabilities in the April 2019 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In March 2020, the Court issued a Joint Motion for Partial Remand (JMPR) and vacated and remanded the Board decision regarding the claims of entitlement to increased ratings for left hip bursitis with limited abduction, adduction, internal rotation, and external rotation; left hip bursitis with limited flexion; left hip bursitis with limited extension; and low back disability. Thereafter, in January 2021, the Board remanded the issues on appeal for further development pursuant to the March 2020 JMPR. These claims have now been returned to the Board for further action. As indicated above, a claim for service connection for right hip disability was developed for appellate consideration in conjunction with the claims currently before the Board. During the pendency of this appeal, an August 2021 rating decision granted entitlement to service connection for right hip disability. The grant of service connection for right hip disability was a full grant of the benefit sought. See AB v. Brown, 6 Vet. App. 35 (1993). Also during the pendency of the remand development, in an August 2021 rating decision, the RO granted an increased evaluation of 10 percent for the left hip bursitis with limited extension, effective May 20, 2021. As this partial rating increase is not the maximum allowable for the entire period on appeal, this issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Entitlement to a compensable evaluation for left hip bursitis with limited extension; a compensable evaluation for left hip bursitis with limited abduction, adduction, internal rotation, and external rotation; and an evaluation in excess of 10 percent for left hip bursitis with limited flexion. The Veteran has asserted that he should have higher ratings for his left hip disability as his symptoms are worse than those contemplated by the currently assigned ratings. During the relevant period on appeal, the Veteran's left hip disability is assigned a 10 percent rating for limitation of flexion under Diagnostic Code 5252, a noncompensable rating prior to May 20, 2021 and a 10 percent rating thereafter for limitation of extension under Diagnostic Code 5251, and a noncompensable rating for limited abduction, adduction, internal rotation, and external rotation under Diagnostic Code 5253. Preliminarily, the Board notes that although the regulations pertaining to rating the musculoskeletal system were amended, effective February 7, 2021, these amendments did not change Diagnostic Codes 5251, 5252 or 5253, the codes pertinent to rating the Veteran's left hip disability. Factual Background At a September 2008 VA examination, the Veteran reported that the pain level in his left hip was an 8 to 9 out of 10 and that there was stiffness but no swelling. See September 2008 VA examination. The examiner noted the Veteran experienced flare-ups in his left hip with continued ambulation and standing in excess of 30 minutes. The examiner noted the Veteran took rest breaks. The examiner noted there was no history of devices, surgery, episodes of dislocation or recurrent subluxation, or symptoms of inflammatory arthritis. Left hip range of motion measurements were as follows: flexion to 100 degrees, extension to 20 degrees, adduction to 20 degrees, abduction to 35 degrees, external rotation to 40 degrees, internal rotation to 20 degrees. The examiner noted that there was end-range pain in all directions and continued pain with repetitive motion at three repetitions but that there was no change in range of motion. The examiner noted there was guarding of movement and that the Veteran's gait was slightly antalgic. The examiner indicated there was no ankylosis. The examiner noted there was no additional limitation of joint function due to pain, weakness, excess fatigability, incoordination, or instability on repeat testing. The examiner diagnosed left hip trochanteric bursitis with left hip strain. At a May 2010 VA examination, the Veteran reported left hip pain and that he would use the TENS unit on the hips. See May 2010 VA examination. He stated that he went to a VA surgeon who told him he had nerve damage. He reported treating his left hip with Ibuprofen 400mg daily that did not help much. Left hip range of motion measurements were normal with flexion to 125 degrees, extension to 15 degrees, abduction to 45 degrees, adduction to 30 degrees, external rotation to 45 degrees, and internal rotation to 40 degrees. The examiner noted there was no further limitation or pain with repeated efforts. The examiner noted there was no edema, ecchymosis, or erythema in the left hip. The examiner noted tenderness in the anterior groin and in the posterior buttocks but that there was no tenderness over the iliac chest and great trochanter. The examiner noted there was no pain with heel pound and that the left hip was neurovascularly intact distally. The examiner noted the Veteran did not use any mechanical aids. The examiner diagnosed left hip bursitis. The examiner noted that the Veteran was able to function in an occupational environment as he was currently employed. The examiner noted the Veteran's physical limitations included the following: no lifting over 25 pounds; no repetitive lifting from 15 to 25 pounds and no more than six times per hour; no climbing ladders, operating a forklift, or machinery; no repetitive back bending task, no more than six times per hour; no prolonged standing or walking, no more than 15 minutes total of combined standing or walking per hour; and no prolonged keyboard work, no more than 30 minutes per hour. At an October 2016 VA examination, the Veteran reported experiencing left hip pain with activity and that when he sat for more than 10 minutes, he needed to get up and walk. See October 14, 2016 C&P Exam. He reported that he wore a TENS unit during the day. The Veteran reported functional limitations that included the following: after standing more than 20 minutes, he needed to rest; walking more than 400 meters, climbing more than two floors of stairs, or bending or squatting caused trouble; work limited to a desk job; could not run or participate in sports or gym activities. Left hip range of motion measurements were as follows: flexion to 60 degrees, extension to 15 degrees, abduction to 30 degrees, adduction to 20 degrees, external rotation to 30 degrees, and internal rotation to 20 degrees. The examiner noted adduction was not limited so that the Veteran could not cross his legs. The Veteran reported that pain was too much to attempt fuller range of motion and that the restricted range of motion explained his functional limitations as described above. The examiner noted there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue and no crepitus. The examiner noted the Veteran was able to perform repetitive use testing with at least three repetitions and that there was no additional loss of function or range of motion after three repetitions. Muscle strength testing was normal in the left hip, there was no muscle atrophy, no ankylosis, and no malunion or nonunion of femur, flail hip, or leg length discrepancy. The examiner noted the Veteran did not require assistive devices for ambulation. The examiner left trochanteric pain syndrome (hip) that included trochanteric bursitis. The examiner reiterated the functional impact as reported by the Veteran above regarding functional limitations. The Veteran was provided another VA examination in May 2021. The Veteran reported that symptoms of increased hip pain and that current treatment included muscle relaxers and TENS unit. He reported that flare-ups in his left hip were precipitated by sitting and were alleviated by laying down. He indicated flare-ups were moderate to severe and occurred many times with varying time length. He reported functional limitations that included the following: difficulty with prolonged standing, walking, light jogging or climbing several flights of stairs, and limited range of motion. Left hip active range of motion measurements were as follows: flexion to 75 degrees, extension to 20 degrees, abduction to 30 degrees, adduction to 20 degrees, external rotation to 40 degrees, and internal rotation to 30 degrees. Passive range of motion had the same measurements as active range of motion. Pain was noted on active motion and passive motion. The examiner did not indicate there was evidence of pain on weight-bearing or nonweight-bearing. The examiner noted that limitation of adduction did not prevent the Veteran from crossing his legs on both passive and active range of motion. The examiner noted there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue and no crepitus. The examiner noted the Veteran was able to perform repetitive use testing with at least three repetitions and indicated there was additional loss of function or range of motion after three repetitions. After three repetitions, flexion was to 70 degrees, extension was to 15 degrees, abduction was to 25 degrees, adduction was to 25 degrees, external rotation was to 35 degrees, and internal rotation was to 25 degrees. The examiner noted that after observed repetitive use, limitation of adduction did not prevent the Veteran from crossing his legs on both passive and active range of motion. The examiner noted that the Veteran was not being examined immediately after repeated use over time and not during a flare-up and indicated that procured evidence suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limited functional ability with repeated use over time or during flare-ups. After repetitive use over time, the examiner estimated the following range of motion in degrees: flexion to 60 degrees, extension to 10 degrees, abduction to 20 degrees, adduction to 10 degrees, external rotation to 30 degrees, and internal rotation to 20 degrees. The examiner noted that after repeated use over time, limitation of adduction did not prevent the Veteran from crossing his legs on both passive and active range of motion. During flare-ups, the examiner estimated the following range of motion in degrees: flexion to 55 degrees, extension to 5 degrees, abduction to 15 degrees, adduction to 5 degrees, external rotation to 25 degrees, and internal rotation to 15 degrees. The examiner noted that during flare-ups, limitation of adduction did not prevent the Veteran from crossing his legs on both passive and active range of motion. There was no muscle atrophy, no ankylosis, and no malunion or nonunion of femur, flail hip, or leg length discrepancy. The examiner noted there was no prior surgical procedures performed on the left hip and found there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the left hip disability. The examiner noted the Veteran occasionally used bracing for ambulation but indicated the brace was used for the back condition. Regarding functional impact, the examiner noted limited range of motion, difficulty with lifting repetitively over 25 lbs., difficulty standing over 30 minutes and walking over one mile due to back pain and stiffness. A review of the record shows that the Veteran received treatment at VA Medical Centers for various disabilities. However, there is no indication from the treatment notes and lay statements of record, to include testimony from the July 2015 Board hearing, that the Veteran has symptoms of his left hip disability, to include limitation of motion, that are worse than those reported at his VA examinations. There is no evidence that the above examiners were not competent, and further each examiner based their assessment on both the Veteran's account of his symptoms and their own objective examination of the left hip disability. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran's disability during the respective periods on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes that the required testing for pain was not conducted in May 2010 and October 2016 VA examination, and the September 2008 examiner did not provide an estimate concerning range of motion loss during flare-ups. However, these issues do not vitiate the probative value of other findings contained in the examination reports. Further, the May 2021 VA examination report contains the necessary testing for pain and an estimate concerning motion loss during flare-ups and repeated use after time. As such, the Board finds it has sufficient information to accurately rate the Veteran's left hip disability. See Sharp v. Shulkin, 29 Vet. App. 26 (2017), DeLuca v. Brown, 8 Vet. App. 202 (1995), and Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Furthermore, the January 2021 Board remand had, in pertinent part, requested the reviewing examiner to comment on whether range of motion measurements for active motion, passive motion, weight-bearing, and nonweight-bearing can be estimated for all prior VA examinations on the left hip disability. However, the May 2021 VA examiner indicated that due to lifestyle, weight fluctuation, and general activities of daily living all have influence on current examination findings, found there was no way to give a retrospective opinion on the range of motion for the previous examinations. See August 2021 C&P Exam. Thus, in adjudicating the functional loss caused by repeated use over time and flare-ups, the Board shall consider the results of the prior VA examination, and shall retroactively apply the findings of the May 2021 VA examination during the time periods when the VA examinations were otherwise insufficient under Sharp, Deluca, or Mitchell. See Sharp v. Shulkin, 29 Vet. App. 26 (2017), DeLuca v. Brown, 8 Vet. App. 202 (1995), and Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Specifically, during the May 2021 VA examination, the examiner noted that after repetitive use testing of three times, there was a decrease of -5 degrees for flexion, extension, adduction, abduction, and internal rotation and a decrease of 10 degrees for external rotation. After repeated use over time, the May 2021 VA examiner estimated a decrease of -15 degrees for flexion and -10 degrees for extension, adduction, abduction, external rotation, and internal rotation. During flare-ups, the examiner estimated a decrease of -20 degrees for flexion, and -15 degrees for extension, adduction, abduction, external rotation, and internal rotation. Since the Veteran reported flare-ups during the September 2008 VA examination, the Board applies the same decreased range of motion measurements to the September 2008 range of motion measurements, at worst, were estimated as follows when considering flare-ups: flexion to 80 degrees, extension to 5 degrees, adduction to 5 degrees, abduction to 20 degrees, external rotation to 25 degrees, and internal rotation to 5 degrees. At the May 2010 VA examination, the examiner specifically noted that there was no further limitation or pain with repeated efforts. However, the examiner did not address flare-ups. Thus, the May 2010 VA examination range of motion measurements, at worst, were estimated as follows when considering flare-ups: flexion to 105 degrees, extension to 0 degrees, adduction to 15 degrees, abduction to 30 degrees, external rotation to 30 degrees, and internal rotation to 25 degrees. During the October 2016 VA examination, the examiner specified the Veteran did not report flare-ups. However, during examination, the examiner was not able to provide estimated range of motion measurements following repeated use over time. Thus, the October 2016 VA examination range of motion measurements, at worst, were estimated as follows when considering repeated use over time: flexion to 45 degrees, extension to 5 degrees, adduction to 10 degrees, abduction to 20 degrees, external rotation to 20 degrees, and internal rotation to 10 degrees. Analysis The Board finds that the Veteran is not entitled to a rating in excess of 10 percent for limitation of left hip flexion at any point on appeal. In this regard, there is no evidence of record showing the Veteran had left hip flexion limited to 30 degrees or less. In fact, the Veteran's left hip flexion has been shown to be limited to, at worst, 45 degrees, after consideration of any decreased range of motion due to pain or following any reported flare-ups or repeated use over time. Therefore, entitlement a rating in excess of 10 percent for limitation of left hip flexion is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5019, 5252. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran warrants a 10 rating for limitation of left hip extension for the entire period on consideration. In this regard, upon retroactively applying the findings of the May 2021 VA examination during the time periods when the VA examinations were otherwise insufficient under Sharp, Deluca, or Mitchell, the findings would reflect limited left hip extension to 5 degrees or less in all prior VA examinations. Therefore, entitlement to a 10 percent rating for limitation of left hip extension is warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5019, 5251. This is the highest rating available under DC 5251. The Board finds that the Veteran is not entitled to a compensable rating for limitation of left hip abduction, adduction, internal rotation, and external rotation. In this regard, even after retroactively applying the findings of the May 2021 VA examination during the time periods when the VA examinations were otherwise insufficient under Sharp, Deluca, or Mitchell, the findings do not show limited left hip abduction motion lost beyond 10 degrees, or adduction in which the Veteran cannot cross his legs, or indication that the Veteran cannot toe out more than 15 degrees. As noted above, the Board acknowledges that the Veteran experiences painful motion; however, that pain has been used to support the 10 percent assigned under limitation of left hip flexion. Use of that same symptom to support an additional compensable rating would be in violation of 38 C.F.R. § 4.14. Therefore, entitlement to a compensable rating for limitation of left hip abduction, adduction, internal rotation, and external rotation is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5019, 5253. The Board notes that the painful motion the Veteran experienced during range of motion was accounted for by the VA examiner when determining the Veteran's range of motion. 38 C.F.R. § 4.40, 4.45. There is no other evidence showing that he has more limitation of motion than that found at the VA examinations. With consideration of all pertinent disability factors, there remains no appropriate basis for assigning higher ratings for the left hip disability. Consideration has been given to assigning a higher rating under another diagnostic code pertaining to the hip. However, there is no indication from the record that the Veteran has ankylosis, flail joint, or impairment of the femur. Therefore, a higher rating under another diagnostic code is not warranted for the Veteran's left hip disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5250, 5254, 5255. Accordingly, the Board finds that after resolving reasonable doubt in the Veteran's favor, a 10 percent rating is warranted under DC 5251 or limitation of extension throughout the period on appeal. An increased rating under any other applicable diagnostic code is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to an evaluation in excess of 10 percent prior to November 13, 2012, in excess of 20 percent from November 13, 2012 to October 13, 2016, and in excess of 40 percent thereafter for low back disability. The Veteran asserts that he should have higher ratings for his back disability as his symptoms are worse than those contemplated by the currently assigned ratings. The Veteran's service-connected low back disability is currently rated as 10 percent disabling prior to November 13, 2012, 20 percent from November 13, 2012 to October 13, 2016, and 40 percent from October 13, 2016 under Diagnostic Code 5237. The Board reiterates that portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021. Diagnostic Code 5237 was not amended; therefore, the rating criteria prior to February 7, 2021 remains. Factual Background At a May 2009 VA examination, the Veteran reported that there was no radiation of back pain, that he used a TENS unit, back brace, heating pads, 400 mg of etodolac, chair massage pad, and received chiropractic care for his back pain. See May 2009 VA Examination. He reported continued discomfort and that at times he could bend over and at other times, he could not. The examiner noted there was no history of hospitalization or surgery of the back or of neoplasm. The examiner noted there was no history of urinary incontinence, urinary urgency, urinary retention requiring catheterization, urinary frequency, fecal incontinence, obstipation, erectile dysfunction, numbness, or paresthesias. The examiner noted there was no history of fatigue, decreased motion, or weakness. The examiner noted there was stiffness, spasms, and moderate spinal flare-ups that occurred every two to three weeks that lasted one to two days. The examiner noted the Veteran alleviated the flare-ups with medication, lying down to rest, back massage, and heating device. The examiner noted there were no incapacitating episodes of the spine disease. The examiner noted the Veteran was able to walk more than 14 mile but less than one mile. On inspection of the spine, the May 2009 VA examiner noted the Veteran's posture, head position, and gait were normal and that there was symmetry in appearance. No abnormal spinal curvatures or ankylosis were noted. The examiner noted there was no spasm, atrophy, guarding, pain with motion, tenderness, or weakness noted. The examiner noted the Lasègue's sign was not positive. Thoracolumbar spine range of motion measurements were as follows: flexion to 70 degrees; extension to 30 degrees; right and left lateral flexion to 30 degrees each; and right and left lateral rotation to 30 degrees each. The examiner noted there was objective evidence of pain on active range of motion but that there was no additional limitation of motion following repetition. Muscle strength testing was normal and there was no atrophy present. Deep tendon reflex and sensory examinations were both normal. The examiner diagnosed lumbosacral strain with mild bulging of annulus. The examiner noted back pain had an impact on occupational activities and regarding usual daily activities, there was only mild effects to exercise and sports. There was no impact to chores, shopping, recreation, traveling, feeding, bathing, dressing, toileting, or grooming noted. At a May 2010 VA examination, the Veteran reported that there was no radiation of back pain, that he used a TENS unit, back brace, heating pads, 400 mg of etodolac, chair massage pad, and received chiropractor care for his back pain. See May 2010 VA Examination. He reported continued discomfort and that at times he could bend over and at other times, he could not. He stated that he felt sharp pain down the back of the legs to the knees with the right side worse than the left. The examiner noted that on physical examination, the Veteran was in no acute distress. The examiner noted there was no history of hospitalization or surgery of the back or of malignant neoplasm. Thoracolumbar spine range of motion measurements were as follows: flexion to 70 degrees; extension to 30 degrees; right and left lateral flexion to 30 degrees each; and right and left lateral rotation to 30 degrees each. The examiner noted there was pain with each range of motion but no additional limitation of motion due to pain, weakness, excess fatigability, incoordination, or instability was noted on repeat testing. Neurological examination during the May 2010 VA examination showed no findings of radiculopathy or other neurological complications. The examiner noted there was no edema, ecchymosis, or erythema. The examiner noted negative left and right straight leg raise. The examiner noted there was no tenderness, muscle spasm, guarding, abnormal spinal contour, or altered gait. The examiner noted the Veteran did not use any mechanical aids. The examiner diagnosed mild degenerative disc disease with chronic lumbar strain. The examiner noted that the Veteran was able to function in an occupational environment as he was currently employed. The examiner noted the Veteran's physical limitations included no lifting over 25 pounds; no repetitive lifting from 15 to 25 pounds and no more than six times per hour; no climbing ladders, operating a forklift, or machinery; no repetitive back bending tasks, no more than six times per hour; no prolonged standing or walking, no more than 15 minutes total of combined standing or walking per hour; and no prolonged keyboard work, no more than 30 minutes per hour. A November 13, 2012 VA treatment record noted the Veteran's gait was guarded due to back pain. See June 2016 CAPRI. At an October 13, 2016 VA examination, the Veteran reported that his back was getting worse over time. See October 14, 2016 C&P Exam. He reported functional limitations that included the following: after standing more than 20 minutes, he needed to rest; walking more than 400 meters, climbing more than two floors of stairs, or bending or squatting caused trouble; work was limited to a desk job; could not run or participate in sports or gym activities. He denied experiencing flare-ups of back pain. Thoracolumbar spine range of motion measurements were as follows: flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees each, and right and left lateral rotation to 30 degrees each. The Veteran stated that pain developed at these very restricted motion ranges and that he would not go any further. The examiner noted that the restricted range of motion led to his reported functional limitations. The examiner noted there was no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. There was no objective evidence of pain on weight bearing. The examiner noted there was no additional limitation of motion of loss of function following repetition. There was no guarding or muscle spasms noted. The examiner noted muscle strength testing was normal, there was no atrophy present, deep tendon reflex examination was normal, and sensory examination was normal. The examiner noted that the Veteran did not present with radicular pain or other signs and symptoms due to radiculopathy. There was no ankylosis noted. The examiner noted the Veteran did not have intervertebral disc syndrome (IVDS) but did require constant use of a back brace for ambulation. The examiner noted that the Veteran did not have a thoracic vertebral fracture with loss of 50 percent or more of height. The examiner noted an October 2016 x-ray of the Veteran's back showed mild degenerative changes. The examiner reiterated the functional impact as reported by the Veteran above regarding functional limitations. In a VA examination conducted in May 2021, the Veteran reported symptoms of sore back, increased pain, and stiffness. He reported treatment included use of a belt, muscle relaxers, tens unit, and chiropractor treatment. See August 2021 C&P Exam. He reported flare-ups of the back occurred on occasion that were severe. He indicated the flare-ups were precipitated by any work and was alleviated by stopping work. He reported functional limitations that included the following: limited range of motion, difficulty with heavy lifting, bending, prolonged walking and sitting. Thoracolumbar spine active range of motion measurements were as follows: flexion to 30 degrees, extension to 15 degrees, and right and left lateral flexion and rotation all to 15 degrees. The examiner noted pain on active and passive range of motion testing for flexion, extension, and right and left lateral flexion and rotation. Passive range of motion measurements were the same as active range of motion measurements. There was evidence of pain on weight-bearing, active motion, and passive motion. There was no objective evidence of crepitus and no objective evidence of localized tenderness or pain on palpation. The examiner noted the Veteran was able to perform repetitive use testing but noted there was additional loss of function or range of motion after three repetitions due to pain and lack of endurance. After three repetitions, range of motion testing revealed flexion to 25 degrees, extension to 15 degrees, and right and left lateral flexion and rotation all to 15 degrees. Although the Veteran was not being examined immediately after repeated use over time, the examiner estimated the following range of motion measurements due to pain and lack of endurance: flexion to 20 degrees, extension to 10 degrees, and right and left lateral flexion and rotation all to 10 degrees. Although the Veteran was not being examined during a flare-up, the examiner estimated the following range of motion measurements due to pain and lack of endurance: flexion to 15 degrees, extension to 5 degrees, and right and left lateral flexion and rotation all to 5 degrees. No guarding or muscle spasms were noted. The examiner noted additional factors contributing to disability included the following: limited range of motion, difficulty with lifting repetitively over 25 lbs., and difficulty standing for over 30 minutes and walking over 1 mile due to back pain and stiffness. Muscle strength testing revealed active movement against some resistance (4/5) but no muscle atrophy and no ankylosis was noted. Reflex examination was noted as normal. Sensory examination revealed decreased sensation to light touch on upper anterior thigh (L2) and thigh/knee (L3/4) on both sides. Straight leg raising test was positive on the right and left. The examiner noted there was radiculopathy noted in the right and left lower extremities involving the sciatic nerve. The examiner noted the in the right and left lower extremities, the Veteran had intermittent pain, paresthesias and/or dysesthesias, and numbness to a moderate degree. The examiner noted the Veteran has intervertebral disc syndrome (IVDS) of the thoracolumbar spine but did not require bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran required occasional use of a back brace. A review of the record shows that the Veteran received treatment at VA Medical Centers for various disabilities. However, except for the aforementioned November 2012 VA treatment record noting a guarded gait due to back pain, there is no indication from the treatment notes and lay statements of record, to include testimony from the July 2015 Board hearing, that the Veteran has symptoms of his back disability, to include limitation of motion, that are worse than those reported at his VA examinations. There is no evidence that the above examiners were not competent, and further each examiner based their assessment on both the Veteran's account of his symptoms and their own objective examination of the low back disability. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran's disability during the respective periods on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes that the required testing for pain was not conducted in May 2009, May 2010, and October 2016 VA examination, and the May 2010 examiner did not provide an estimate concerning range of motion loss during flare-ups. However, these issues do not vitiate the probative value of other findings contained in the examination reports. Further, the May 2021 VA examination report contains the necessary testing for pain and an estimate concerning motion loss during flare-ups. As such, the Board finds it has sufficient information to accurately rate the Veteran's low back disability. Furthermore, the January 2021 Board remand had, in pertinent part, requested the reviewing examiner to comment on whether range of motion measurements for active motion, passive motion, weight-bearing, and nonweight-bearing can be estimated for all prior VA examinations on the low back disability. However, the May 2021 VA examiner indicated that due to lifestyle, weight fluctuation, and general activities of daily living all have influence on current back examination findings, found there was no way to give a retrospective opinion on the range of motion for the previous examinations. See August 2021 C&P Exam. Thus, in adjudicating the functional loss caused by repeated use over time and flare-ups, the Board shall consider the results of the prior VA examination, and shall retroactively apply the findings of the May 2021 VA examination during the time periods when the VA examinations were otherwise insufficient under Sharp, Deluca, or Mitchell. See Sharp v. Shulkin, 29 Vet. App. 26 (2017), DeLuca v. Brown, 8 Vet. App. 202 (1995), and Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Specifically, during the May 2021 VA examination, the examiner noted that after repetitive use testing of three times, there was a decrease of -5 degrees for flexion and no decrease for extension, right and left lateral flexion and rotation. After repeated use over time, the examiner estimated a decrease of -10 degrees for flexion and -5 degrees for extension, right and left lateral flexion and rotation. During flare-ups, the examiner estimated a decrease of -15 degrees for flexion, and -10 degrees for extension, right and left lateral flexion and rotation. Since the Veteran reported flare-ups during the May 2009 VA examination, the Board applies the same decreased range of motion measurements to the May 2009 range of motion measurements, which at worst, were estimated as follows when considering flare-ups: flexion to 55 degrees, extension to 20 degrees, and right and left lateral flexion and rotation all to 20 degrees. At the May 2010 VA examination, the examiner did not address flare-ups. Thus, the May 2010 VA examination range of motion measurements, at worst, were estimated as follows when considering flare-ups: flexion to 55 degrees, extension to 20 degrees, and right and left lateral flexion and rotation all to 20 degrees. During the October 2016 VA examination, the examiner specified the Veteran did not report flare-ups. However, during examination, the examiner was not able to provide estimated range of motion measurements following repeated use over time. Thus, the October 2016 VA examination estimated range of motion measurements, at worst, were estimated as follows when considering repeated use over time: flexion to 20 degrees, extension to 5 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 25 degrees. Analysis Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran is entitled to a 20 percent rating, but no higher, prior to November 13, 2012. However, the Veteran is not entitled to a rating in excess of 20 percent from November 13, 2012 to October 13, 2016 and in excess of 40 percent thereafter. In this regard, prior to November 13, 2012, upon retroactively applying the findings of the May 2021 VA examination during the time periods when the VA examinations were otherwise insufficient under Sharp, Deluca, or Mitchell, the Veteran had, at worst, flexion to 55 degrees during the May 2009 and May 2010 VA examinations. As there is evidence of record showing the Veteran had flexion limited to 60 degrees or less prior to November 13, 2012, entitlement to a rating in of 20 percent for low back disability prior to November 13, 2012 is warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242. However, prior to October 13, 2016, there is no evidence of record showing the Veteran had flexion limited to 30 degrees or less. The Veteran's back had not been ankylosed, or immobile, at any time. Except for the November 13, 2012 VA treatment record noting the Veteran's gait was guarded due to back pain, subsequent treatment records have not indicated ongoing guarded gait, to include the most recent October 2016 VA examination. Therefore, entitlement to a rating in excess of 20 percent for low back disability prior to October 13, 2016 is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242. From October 13, 2016, the evidence of record shows that upon retroactively applying the applicable findings of the May 2021 VA examination to the October 2016 VA examination, the Veteran's forward flexion was limited, at worst, to 20 degrees. Thus, the Board finds that that the currently assigned 40 percent rating is appropriate from October 13, 2016. There is no evidence of record showing the Veteran's back has been ankylosed, or immobile, at any time. Thus, a higher evaluation based on limitation of motion is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242. There is also no evidence that the Veteran's low back disability has resulted in incapacitating episodes having a total duration of at least 4 weeks during any 12-month period prior to October 13, 2016, or a total duration of at least 6 weeks during any 12-month period thereafter. The Veteran did not report having any incapacitating episodes that required physician prescribed bedrest at the examinations, and the other medical evidence of record does not show any such episodes. Thus, a higher evaluation based on incapacitating episodes is not warranted for any period on appeal. 38 C.F.R. § 4.71a, Diagnostic Codes 5243. (Continued on the next page) Regarding any neurological manifestations of the lumbar spine, to include numbness and pain radiating down his legs, the Board notes that the Veteran was awarded service connection for radiculopathy in his right and left lower extremities in August 2021 by the Regional Office. There are no additional neurological manifestations of the lumbar spine that warrant a separate rating. In conclusion, resolving reasonable doubt in the Veteran's favor, a rating of 20 percent, but no higher, prior to November 13, 2012 is warranted. However, a rating in excess of 20 percent prior to October 13, 2016 is not warranted, and a rating in excess of 40 percent thereafter for the low back disability is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Cheng, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.